Canceled or delayed flight: What can be done legally?

Flight delays or even cancellations are a risk we face on a daily basis, whether on business or leisure trips. Our current dynamics means that, on many occasions, catching a plane becomes essential and, as a result, we have to place all our trust in an airline we know little about. And the truth is that, although we all associate the concept of "airport" with "exorbitant prices", "endless lines", and "long flight delays", we never think that it will be our turn. But what if it is our flight that is delayed or cancelled?

Well, in order to strengthen the protection of European Community travelers, and at the same time ensure that air carriers could carry out their activities under harmonized conditions, the European Parliament and the Council of the European Union adopted Regulation (EC) No. 261/2004 of the European Parliament and of the Council of 11 February 2004, which regulates the compensation to which airline passengers who are denied boarding, delayed or cancelled flights are entitled. 

Before analyzing the cases that would be covered by the protection of this regulation, it is necessary to point out that there are exceptions that exclude the right of passengers to receive financial compensation derived from a delay, flight cancellation or denied boarding. Among these extraordinary circumstances, as in the Montreal Convention, we find weather conditions incompatible with the flight, as well as cases of political instability in the countries involved in the flight. 

Which cases fall under the protection of the European Regulation?

As more and more passengers are being denied boarding against their will, as well as those affected by cancellations or long flight delays, it is essential to see whether our situation is covered by the protection of Regulation (EC) No. 261/2004.  

The first thing to focus on is the airport of origin or destination of the aircraft. Only flights departing from or arriving at an airport located in a Member State of the European Union are included within the scope of Regulation (EC) No. 261/2004. Therefore, any delay, cancellation or denied boarding on flights between or in third countries will be excluded from the scope of protection of the Regulation, unless it is covered by the protection offered to connecting flights. 

Once it has been established that the flight concerned would be covered by the protection of the European regulation, the next aspect to be considered is the distance between the place of origin and the place of destination. This characteristic is the main variable in terms of the compensation available to the passenger affected by the delay, cancellation or denied boarding (popularly known as overbooking). 

Regulation (EC) No. 261/2004 groups all financial compensation according to the distance of the flight, taking into account the distance traveled from the airport of departure to the last place of destination where the passenger arrived affected. Specifically, flights are separated into three groups: 

• Flights of 1,500 kilometers or less. 
• Flights with distances of more than 1,500 kilometers between territories of member states of the European Union, or in its case, any flight between 1,500 and 3,500 kilometers in distance. 
• Flights of more than 3,500 kilometers. 

The aforementioned difference is justified by the seriousness of the inconvenience caused to the traveler who has been affected in his flight. 

What rights does the European Regulation regulate?

Regulation (EC) No. 261/2004 grants airline passengers certain rights in order to guarantee users a high level of protection. These include the right to reimbursement of tickets, the right to cancel booked tickets, the right to re-routing and financial compensation, as well as the right to free food, drinks, accommodation and telephone calls. 

Thus, depending on the group to which the flight belongs, depending on the above-mentioned distances, financial compensation can range from 250 euros for flights of less than 1,500 kilometers to 600 euros for flights with distances of more than 3,500 kilometers. To these compensations, in some cases, may be added the right to request the reimbursement of the price of the affected tickets. 

Specifically, in the event of denied boarding on the flight booked, the traveler will be entitled to financial compensation, as well as the choice between reimbursement of the full cost of the ticket or transportation to the final destination. In addition, they are entitled to various benefits as set out in Article 9 of the Regulation, including the obligation of the airline to provide free meals and refreshments, accommodation in the event that an overnight stay is necessary, and the possibility of making telephone calls or sending e-mails. 

What happens in case of flight cancellation or delay?

On the other hand, if there is a flight cancellation, travelers will have the right to choose between reimbursement of the ticket or transportation to the destination, and financial compensation, provided that they have not been informed of the cancellation more than two weeks in advance. This right would also not apply if, with less than 7 days notice, they have been offered a different flight departing no more than one hour before the original flight and arriving at their destination less than two hours later than the scheduled time. 

Finally, for cases where there is a flight delay, when the delay is 2 hours or more for group A flights; 3 hours or more for group B flights; and 4 hours or more for group C flights, travelers will be entitled to meals and calls, accommodation and transportation when the new scheduled departure time is the following day, and in any case, if the flight is more than 5 hours late, they may claim reimbursement of the ticket price of the trip not made, together with a return flight to the first point of departure. If, due to the delay, the organized trip no longer serves any purpose, reimbursement of the price of all tickets may be requested, even if they have already been used.

Regardless of all the above, in addition, any passenger who suffers alterations in the flights booked, whether delays, cancellations or denied boarding, is entitled to be informed of his rights by the air carrier in charge of the flight. Consequently, it will be up to the airline itself to provide passengers with any information available to them regarding the reason for the delay or cancellation, as well as to inform them of their rights in the event of denied boarding, cancellation or long delay of flights so that they can exercise them effectively. 

New developments in legal proceedings

Having analyzed the circumstances, if we are faced with a possible claim against the airline for delay, cancellation or denied boarding, the main thing is to try to resolve the situation amicably. However, if the airline disregards the claims made, we may also choose to go to court to claim compensation.   

In this regard, although Regulation (EC) No. 261/2004 has been in force since 2004, the truth is that its application in our country has undergone some changes in recent times that are necessary to highlight.

In Spain, until July 28, 2022, the competence to hear claims for air transport claims corresponded to the Commercial Courts. However, with the intention of unloading our specialized courts, the competence was modified and now corresponds to the Courts of First Instance. 

As a result of this change in the courts competent to handle these proceedings, other changes have been taking place, the most significant of which is the mediation function adopted by the courts, in accordance with the powers granted to them by the Civil Procedure Act. Thus, in view of the increasing number of flight claims, as a general rule, our courts have decided to grant the defendant airline a period of time to try to reach an agreement with the plaintiffs, which is usually around 15 days.  Although this period of time is granted prior to the admission of the lawsuit, at the end of this period, if an agreement has not been reached between the parties, the lawsuit is admitted and the normal course of the procedure continues.  

The above is because, unlike what happens with other types of litigation, due to the control and monitoring of flights at airports, the documentary evidence necessary in this type of procedure to prove a delay or cancellation of a flight It is usually obvious. The truth is that, as we have mentioned previously, in accordance with the provisions of Regulation (EC) No. 261/2004, airlines have the obligation to give their passengers information about the delay or cancellation of their flights, and the rights that they can exercise. Therefore, the communications sent by the airline itself or reports on the status of the flights, where their cancellation or delay is announced, are usually key to the success of the procedure. Therefore, it is essential to carry out a thorough study of each specific case and make a good collection of documentary evidence before filing the lawsuit in order to encourage the opposing party to negotiate during that initial period.

The lawyers in our litigation and arbitration department work daily in situations of this type, so they can help anyone who must face them, always seeking the most optimal solution for each specific case.

Claudia García

Lawyer in the area of ​​litigation and arbitration